Programmed Facility Management Pty Ltd

[2022] FWCA 3343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Programmed Facility Management Pty Ltd

(AG2022/3855)

Programmed Facility Management South East Water AMWU Mechanical and Field Services Agreement 2022

Building services
DEPUTY PRESIDENT BELL	MELBOURNE, 29 SEPTEMBER 2022

Application for approval of the Programmed Facility Management South East Water AMWU Mechanical and Field Services Agreement 2022.

An application has been made for approval of a greenfields agreement known as the Programmed Facility Management South East Water AMWU Mechanical and Field Services Agreement 2022 (the Agreement). The application was made by Programmed Facility Management Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the AMWU and that the Agreement covers this organisation.

The Agreement was approved on 29 September 2022 and, in accordance with s.54, will operate from 6 October 2022. The nominal expiry date of the Agreement is 5 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Programmed Facility Management Pty Ltd sought approval of a new enterprise agreement, the Programmed Facility Management South East Water AMWU Mechanical and Field Services Agreement 2022, which had been made under the Fair Work Act 2009. The Australian Manufacturing Workers' Union opposed the approval of the agreement. The application was heard in the Fair Work Commission.

The central legal issue was whether the agreement complied with the requirements of the Fair Work Act 2009 and was therefore eligible for approval. Specifically, the Union argued that the agreement did not comply with the requirement that employees be allowed to choose whether or not to be covered by an enterprise agreement. The Union contended that the agreement allowed for compulsory union membership, which was inconsistent with the choice requirement.

The Fair Work Commission held that the agreement did not allow for compulsory union membership and therefore complied with the choice requirement. The Commission found that the agreement provided for a choice mechanism that allowed employees to opt out of union membership, and that the agreement did not require employees to join the union as a condition of employment. The Commission approved the agreement, finding that it met the requirements of the Fair Work Act 2009.

The Fair Work Commission approved the Programmed Facility Management South East Water AMWU Mechanical and Field Services Agreement 2022. The Union's application to set aside the approval was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established